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Updated May 2, 2014

Summaries of Recently Released Decisions to Be Included In the Next Issue of the Digest (uncorrected)


Click on the Case Name to View Full Decision




Demand for Jury Trial Properly Struck/Rescission Was Core of Action and Counterclaim


In a detailed opinion by Justice Moskowitz, the First Department methodically went through the issues raised in a trial stemming from the breakdown of a partnership including breach of fiduciary duty, tortious interference with contract and unjust enrichment. In the course of the opinion, the court noted that inclusion of a cause of action and counterclaim for rescission constituted a waiver of a jury trial:


Defendants next assert that the trial court improperly struck their jury demand in Action 1. This argument has no merit. Because defendants' demand for the equitable remedy of rescission in Action 2 was not "incidental" to that action, and their demand for rescission was not "incidental" to their counterclaims in Action 1, defendants effectively waived their right to a jury trial by joining those demands with claims for legal relief ... . In addition, defendants argued that rescission of the partnership's license agreements ... was "the core" of their claims in both actions, and defendants all asserted, as part of their Action 1 counterclaims, that they had "no adequate remedy at law." New Media Holding Co LLC v Kagalovsky, 2014 NY Slip Op 02888, 1st Dept 4-29-14





Email Acknowledging Debt Raised Question of Fact About Whether Period of Limitations Was Restarted by the Email


The Second Department determined an e-mail acknowledging plaintiff's entitlement to a commission raised a triable issue of fact about whether the statute of limitations was restarted:


The defendants made a prima facie showing that the applicable six-year statute of limitations expired before the plaintiff commenced this action (see CPLR 213...). In opposition, however, the plaintiff raised a triable issue of fact as to whether an email message, purportedly sent by the defendant ..., acknowledged the plaintiff's entitlement to a brokerage commission and demonstrated the defendants' intent to pay it, thus restarting the statute of limitations (see General Obligations Law § 17-101...). " Whether a purported acknowledgment is sufficient to restart the running of a period of limitations depends on the circumstances of the individual case'" ... . Here, a trial is necessary to resolve this issue. Georg Tsunis Real Estate Inc v Benedict, 2014 NY Slip Op 02899, 2nd Dept 4-30-14





Court May Not Deny a Dispositive Motion on a Ground Not Raised by the Parties/Assumption of Risk Precluded Suit Based Upon Falling Off an Exercise Ball


The Second Department, in a full-fledged opinion by Justice Leventhal, determined that Supreme Court improperly denied defendant's [Eastern Athletic's] motion for summary judgment.  The plaintiff had fallen off an exercise ball during an exercise class.  The Second Department found plaintiff's lawsuit was precluded by the doctrine of assumption of the risk. In denying defendant's motion for summary judgment, Supreme Court ruled the deposition transcripts submitted by the defendant were inadmissible because they were not certified, a ground that had not been raised by the parties.  The Second Department held that a dispositive motion can not be denied on a ground that was not raised by the parties:


Here, the Supreme Court denied the subject motion for summary judgment on a ground that the parties did not litigate. The parties did not have an opportunity to address the issue relating to the certification of the plaintiff's deposition transcript, relied upon by the Supreme Court in denying that dispositive motion. The lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process. It is significant that, in Misicki v Caradonna (12 NY3d 511, 519), the Court of Appeals cautioned the judiciary that "[w]e are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made" (id. at 519).


The Supreme Court erred in denying Eastern Athletic's motion for summary judgment by deciding that the plaintiff's deposition transcript was uncertified and, therefore, inadmissible, where that ground of admissibility was not raised by the plaintiff herself. Notably, the plaintiff's deposition transcript recites that the plaintiff was duly sworn. Moreover, in civil cases, "inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess" ... .


Had the plaintiff argued in opposition to Eastern Athletic's motion that her deposition transcript was inadmissible because it was uncertified, Eastern Athletic could have submitted a certification in its reply papers and, if the plaintiff were not prejudiced, the Supreme Court may have considered it ... . Eastern Athletic's failure to submit to the Supreme Court a certified copy of the plaintiff's deposition was an irregularity and, as no substantial right of a party was prejudiced, the court should have ignored the defect (see CPLR 2001). Rosenblatt v St George Health & Racqetball Assoc LLC, 2014 NY Slip Op 02917, 2nd Dept 4-30-14





Detective's Strongly Urging Defendant to Make a Statement Did Not Render Statement Involuntary


The First Department determined the detective's urging defendant to make a statement did not render defendant's statement involuntary:


...[P]rior to administering Miranda warnings, for a period of approximately 20 minutes, [the detective] urged defendant to talk to the police and "gave him several reasons why he should." The detective properly conveyed to defendant that he knew defendant was involved in the crime, stating "point blank" that the evidence against defendant was strong, including videotape and eyewitness evidence. He urged defendant to take advantage of "your chance" to speak before the other suspects implicated him ... . The detective also told defendant that cooperation could be beneficial and that the detective would "call the D.A." once defendant "put down" his story. After defendant indicated that he wanted to talk, he was read his Miranda rights, waived them, and proceeded to make several written statement and one videotaped statement.There is nothing in the record to indicate that defendant's will was overborne or that the detective's preliminary remarks tricked, cajoled or threatened him into waiving his Miranda rights. People v Rutledge, 2014 NY Slip Op 02885, 1st Dept 4-29-14




Response to Sex Offender Treatment Program Must Be "Exceptional" to Warrant Downward Departure (SORA)


The Second Department noted that defendant did not present sufficient support for a downward departure based upon his participation in a sex offender treatment program because the defendant did not establish his response to treatment was "exceptional." People v Tisman, 2014 NY Slip Op 02913, 2nd Detp 4-30-14



Defense Counsel's Denial of Defendant's Assertion He Was Forced to Plead Guilty Required Assignment of New Counsel


The Second Department determined defense counsel's denial of defendant's claim he was forced to plead quilty by defense counsel's telling him a rejection of the plea offer would result in a much greater sentence effectively made defense counsel a witness against her client.  A new attorney should have been assigned at that point to protect defendant's right to counsel.  People v Barr, 2014 NY Slip Op 02949, 2nd Dept 4-30-14




Judge's Statement Defense Counsel Should Confine Her Opening to What She Intended to Prove, Under the Facts, Did Not Shift Burden of Proof


The Second Department determined the trial judge's admonition to defense counsel to confine her opening statement to what she intended to prove did not shift the burden of proof:


Contrary to the defendant's contention, the Supreme Court's admonitions to defense counsel to confine her opening statement to what she intended to prove did not shift the burden of proof. The court thoroughly instructed the jury that the defense did not have to make an opening statement, that the burden of proof remained with the People, and that the defendant had no burden ... . Furthermore, the court's comments did not prevent defense counsel from completing her opening statement, or overly restrict her opening statement ... . Under the circumstances of this case, there is no realistic view that the court's remarks could be interpreted so as to skew the burden of proof .. . The court's remarks were brief, isolated, and innocuous in context ... . People v Robles, 2014 NY Slip Op 02960, 2nd Dept 4-30-14





Evidence of Gang Membership Properly Admitted to Show Motive for Assault


The Second Department determined evidence of defendant's membership in a gang, including expert evidence, was properly admitted in light of defense counsel's argument defendant had no motive to assault correction officers.  People v Murray, 2014 NY Slip Op 02957, 2nd Dept 4-30-14




Defendant's Motion to Vacate His Conviction Should Not Have Been Denied Without a Hearing On the Ground It Was Untimely/The Motion Raised Legal Grounds for Relief (Evidence Withheld at Trial) and There Is No Time Limit for a Motion to Vacate a Conviction Pursuant to CPL 440.10


The Second Department determined defendant's motion to vacate his conviction should not have been denied without a hearing on the ground it was untimely.  Defendant had raised substantive, supported claims that Brady and Rosario material had not been turned over to him at trial.  The Second Department noted there is no time limit for bringing a motion to vacate a conviction pursuant to Criminal Procedure law section 440.10:


...[T]he defendant's moving papers allege a ground constituting legal basis for the motion, i.e., that "[i]mproper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom" (CPL 440.10[f]). The County Court erred in denying the motion on the ground that the defendant unduly delayed making the allegations of Brady and Rosario violations, as "[t]here is no time limit on the filing of CPL 440.10 motions" ... . Further, the moving papers were sufficient to establish entitlement to a hearing ... . People v Taylor, 2014 NY Slip Op 02964, 2nd Dept 4-30-14







Criteria for Rescission of a Life Insurance Policy Based Upon Material Misrpresentation Explained


The Second Department determined the insurer was entittled to summary judgment rescinding the life insurance policy based upon the insured's material misrepresentation.  The court explained the operative principles:


"[T]o establish its right to rescind an insurance policy, an insurer must demonstrate that the insured made a material misrepresentation. A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented" (...see Insurance Law § 3105[b]...). Whether a misrepresentation is material is generally a question of fact for the jury ... .


"To establish materiality as a matter of law, the insurer must present documentation concerning its underwriting practices, such as underwriting manuals, bulletins, or rules pertaining to similar risks, which show that it would not have issued the same policy if the correct information had been disclosed in the application" (...see Insurance Law § 3105[c]...). "[E]ven innocent misrepresentations, if material, are sufficient to allow an insurer to defeat recovery under the insurance contract" ... . "[M]aterial misrepresentations . . . if proven, would void the . . . insurance policy ab initio" ... .


Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law on its counterclaim for rescission ... . In support of its motion, the defendant established, prima facie, that the plaintiffs' decedent made material misrepresentations in his application for the subject insurance policies. Moreover, the defendant also established, prima facie, that, had it been properly advised, it would not have issued the subject policies.


In opposition to the defendant's showing of entitlement to judgment as a matter of law on its counterclaim for rescission of the life insurance policies, the plaintiffs failed to raise a triable issue of fact concerning either the decedent's misrepresentation or the materiality of that misrepresentation ... . Smith v Guardian Life In Co of Am, 2014 NY Slip Op 02923, 2nd Dept 4-30-14





Shortened Statute of Limitations in Policy Enforced


The Second Department reversed Supreme Court and held that the shortened statute of limitations in the insurance policy was enforceable:


"The parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations. Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced" ... . "Where the party against which an abbreviated Statute of Limitations is sought to be enforced does not demonstrate duress, fraud, or misrepresentation in regard to its agreement to the shortened period, it is assumed that the term was voluntarily agreed to" ... .


* * * The plaintiff did not offer evidence that the defendant's conduct lulled him into inactivity based on a belief that his claim would ultimately be processed, or that he was "induced by fraud, misrepresentation or deception to refrain from commencing a timely action" ... .  John v State Farm Mut Auto Ins Co, 2014 NY Slip Op 02905, 2nd Dept 4-30-14





Failure to Appear at Deposition Was a Material Breach of a Condition Precedent to the Promise to Indemnify


The Second Department determined that the assignees of no-fault insurance benefits were not entitled to a second chance to appear at a deposition called by the plaintiff. Appearance at the deposition was a condition precedent to the promise to indemnify and the failure to appear was a material breach precluding recovery:


"It is well established that the failure to comply with the standard policy provision requiring disclosure by way of submission to an examination under oath, as often as may be reasonably required, as a condition precedent to performance of the promise to indemnify, constitutes a material breach" of the policy, precluding recovery of the policy proceeds ... . In support of that branch of its motion which was for summary judgment, the plaintiff, upon renewal, submitted evidence establishing "that it twice duly demanded an examination under oath" from the assignees, that the assignees twice failed to appear, and that the plaintiff "issued a timely denial of the claims" arising from the assignees' provision of medical services to the assignors ... . Based upon the foregoing, the plaintiff established its prima facie entitlement to judgment as a matter of law ... .


In opposition to the plaintiff's prima facie showing, the assignees failed to submit evidence of a reasonable excuse for their noncompliance with the demands for examinations under oath, or of partial performance on their part ... . The assignees also failed to raise a triable issue of fact as to the reasonableness or propriety of the demands for the examinations under oath ... . Moreover, "the [assignees'] breach of the policy was not cured by [their] belated expression of a willingness to cooperate which was made more than two years after the loss and only in response to the insurer's motion for summary judgment" ... . "[A]n insurance company is entitled to obtain information promptly while the information is still fresh to enable it to decide upon its obligations and protect against false claims. To permit [the defendants] to give the information more than [two] years after the [loss] would have been a material dilution of the insurance company's rights" ... . IDS Prop Cas Ins Co v Stracar Med Servs PC, 2014 NY Slip Op 02902, 2nd Dept 4-30-14





Failure to Take Evasive Action Did Not Constitute Contributory Negligence


The Second Department explained that a driver faced with making a quick decision because another driver has failed to yield the right-of-way is not comparatively negligent:


[The driver of the car in which plaintiff was a passenger] entered the intersection where the collision occurred against a red traffic light, in violation of Vehicle and Traffic Law § 1110(a) ..., and that this was the sole proximate cause of the accident. A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law ... .


* * * [The other driver's] deposition testimony that she did not take evasive action in the seconds before impact did not raise a triable issue of fact. "[A] driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision" ..., and " was entitled to anticipate that the [other driver] would obey the traffic law requiring [her] to yield'" ... . Joaquin v Franco, 2014 NY Slip Op 02904, 2nd Dept 4-30-14



Collision With Another Swimmer Not Actionable/Primary Assumption of Risk


The Second Department determined unintentional, incidental contact between swimmers in the same swim lane during "free swim" was not actionable:


The doctrine of primary assumption of risk is based on the principle that athletic and recreational activities possess enormous social value, even though they involve significantly heightened risks ... . Thus, " [a] plaintiff is barred from recovery for injuries which occur during voluntary sporting or recreational activities if it is determined that he or she assumed the risk as a matter of law'" ... . Participants are not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks ... . However, by voluntarily engaging in a sport or recreational activity, a participant assumes, or consents to, the commonly appreciated risks that are inherent in and arise out of the activity generally, and which flow from the participation ... . An incidental collision or contact between persons confined to a pool lane during a free swim is an inherent risk of the activity ... .  Rueckert v Cohen, 2014 NY Slip Op 02918, 2nd Dept 4-30-14





Application to File Late Notice of Claim (One Month Late) on Behalf of Infant Claimant Injured at School Should Not Have Been Granted


The Second Department determined Supreme Court should not have granted claimants' application to file a late notice of claim against a school district.  Claimant alleged infant claimant (Zachary) was injured playing touch football and the school did not provide adequate supervision.  In finding the criteria for allowing the filing of a late notice were not met, the court wrote:


The key factors to be considered in determining whether to grant leave to serve a late notice of claim are (1) whether the claimant or claimants demonstrated a reasonable excuse for the failure to timely serve a notice of claim, (2) whether one or more of the claimants was an infant at the time the claim arose and, if so, whether there was a nexus between the infancy and the delay in service of a notice of claim, (3) whether the school district acquired actual knowledge of the essential facts constituting the claim within 90 days of the incident or a reasonable time thereafter, and (4) whether the school district was substantially prejudiced by the delay in its ability to maintain its defense on the merits


Here, Zachary and his mother did not proffer sufficient proof to establish a reasonable excuse for their failure to serve a timely notice of claim upon the appellant ... . Furthermore, Zachary's infancy, without any showing of a nexus between the infancy and the delay, was insufficient to constitute a reasonable excuse ... . In addition, while a school official prepared an accident claim form the day of the incident and a school medical claim form was filled out the day following the incident, those reports, which merely indicated that Zachary hurt his right knee playing two-hand touch football during physical education class, did not establish that the appellant had actual knowledge within 90 days of the incident or a reasonable time thereafter, of the essential facts underlying the claims of negligent supervision and that the school field constituted a defective and dangerous condition ... . Accordingly, the appellant had no reason to conduct a prompt investigation into the purported negligent supervision and the alleged dangerous condition of the field ... . Finally, Zachary and his mother failed to establish that the approximately one-month delay after the expiration of the 90-day statutory period would not substantially prejudice the appellant in maintaining a defense on the merits ... . Matter of Manuel v Riverhead Cent Sch Dist, 2014 NY Slip Op 02939, 2nd Dept 4-30-14



Same result in claim against a fire district alleging medical malpractice and negligence in response to an accident.  Matter of Snyder v County of Suffolk, 2014 NY Slip Op 02942, 2nd Dept 4-30-14





Question of Fact About Property Owner's Constructive Notice of Lead Paint/Tenant by the Entirety Could Be Vicariously Liable


The First Department determined questions of fact had been raised about whether defendant property owner, Robert Dvorak, had constructive notice of lead paint on the premises.  The court noted that the complaint should not have been dismissed against Diane Dvorak who also owned the property as a tenant by the entirety:


The motion court correctly found that plaintiffs raised questions of fact as to whether Robert A. Dvorak had constructive notice of lead-based paint in the Babylon premises, since they presented evidence that he entered the premises, made repairs, knew that the building was constructed before the banning of lead-based interior paint, was aware that paint was peeling on the premises, knew of the hazards of lead-based paint to young children, and knew that a young child lived in the house .... .The motion court should not have granted summary judgment to Diane L. Dvorak, since, as a tenant by the entirety with her husband Robert, she may be held vicariously liable for his actions toward the property... . Rivera v Neighborhood Partnership Hous Dev Fund Co Inc, 2014 NY Slip Op 02873, 1st Dept 3-29-14





Criteria for Prohbition and Mandamus Actions Explained


The Second Department, in finding Supreme Court properly denied the petition against a judge, explained the criteria for prohibition and mandamus actions:


"Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court —in cases where judicial authority is challenged —acts or threatens to act either without jurisdiction or in excess of its authorized powers" ... . "Prohibition will not lie, however, simply to correct trial errors" ... and may not be employed as a means of seeking collateral review of mere trial errors of substantive law or procedure, no matter how egregious the error might be ... .


"The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act and only when there exists a clear legal right to the relief sought" ... . Mandamus will not lie if the action sought to be compelled involves an exercise of discretion or reasoned judgment ... . Matter of Jordan v Levine, 2014 NY Slip Op 02934, 2nd Dept 4-30-14





Criteria for Review of Rulings on Variances Explained


The Second Department explained the general critieria for reviewing a variance-ruling by a town zoning board of appeals (ZBA):


In reaching its determination, the ZBA engaged in the balancing test prescribed by Town Law § 267-b(3)(b), and properly found, inter alia, that the requested variances were not substantial, would not produce an undesirable change in the character of the neighborhood or a detriment to nearby properties, and would not have an adverse effect or impact on the physical or environmental conditions in the neighborhood * * * Since the determination under review was not illegal, arbitrary and capricious, or an abuse of discretion, and was supported by a rational basis ..., it must be sustained. Matter of Harbor Park Realty, LLC v Modelewski, 2014 NY Slip Op 02931, 2nd Dept 4-30-14

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